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In re S.J.T.H.

Court of Appeals of North Carolina

March 6, 2018

IN THE MATTER OF: S.J.T.H., Minor Child.

          Heard in the Court of Appeals 21 February 2018.

         Appeal by respondent from order entered 28 June 2017 by Judge Christy E. Wilhelm in District Court, Cabarrus County No. 17-JA-47.

          Hartsell & Williams, PA, by H. Jay White and Austin "Dutch" Entwistle III, for petitioner-appellee Cabarrus County Department of Social Services.

          Jeffrey L. Miller, for respondent-appellant.

          Michael N. Tousey, for guardian ad litem.

          STROUD, JUDGE.

         Respondent appeals an adjudication and disposition order placing his son in the custody of the Cabarrus County Department of Human Services and ordering him to comply with certain conditions to gain custody. DSS presented no evidence regarding respondent beyond that supporting paternity, and the trial court made no substantive findings of fact about respondent other than those relevant to paternity. The trial court's findings and conclusions regarding the adjudication of neglect by the mother are not challenged on appeal. We affirm the adjudication of neglect, all portions of the order regarding the mother, and the adjudication of paternity, but we reverse the provisions of the order directing respondent to comply with the order's conditions and remand for entry of an order in compliance with respondent's constitutional and statutory rights as the minor child's father.

         I. Background

         In February of 2017, Sam[1] was born. Sam's mother identified Abel as his father and gave Sam Abel's last name. Because of mother's prior history with Cabarrus County Department of Human Services ("CCDHS") for her older child and her ongoing drug abuse, Sam could not be released to her custody. Abel initially said he would care for Sam but failed to show up when it was time for Sam's discharge from the hospital. Sam was placed with a family friend. In March of 2017, respondent contacted CCDHS; he reported that he may be Sam's father, and offered to care for him. In April of 2017, CCDHS filed a petition which identified both Abel and respondent as possible fathers, and alleged Sam was a neglected and dependent juvenile based upon mother's prior history with CCDHS and drug abuse; Sam was placed in non-secure custody. In May of 2017, a paternity test confirmed that respondent is Sam's father. In June of 2017, the trial court adjudicated Sam's paternity, adjudicated him as neglected based upon mother's drug abuse and other issues, and granted custody to CCDHS. CCDHS presented no evidence regarding respondent other than basic identification information and evidence to establish paternity.[2] The order -- incorrectly titled as a consent order -- ordered respondent to comply with the same eleven mandates as mother, including completing a substance abuse assessment, undergoing random drug testing, participating in parenting classes, and verifying that he had sufficient income. The order essentially makes no distinction between mother and respondent although all of the evidence addressed mother's issues, including her drug abuse, criminal history, and prior CCDHS involvement, with nothing presented about respondent, who had only been discovered as Sam's father in the prior month. Respondent appeals.

         II. Adjudication Order

         Respondent does not challenge the trial court's adjudication of paternity nor the adjudication of Sam as a neglected juvenile due to his mother's actions and thus we will not address those portions of the order and, they will remain in force. But respondent challenges the remainder of the order to the extent that it addresses him, particularly as to the trial court's determination that Sam should not be released to his custody and the conditions placed on respondent. All of respondent's challenges would require us to analyze whether the evidence supports the trial court's findings of fact and conclusions of law regarding respondent. See generally In re McCabe, 157 N.C.App. 673, 679, 580 S.E.2d 69, 73 (2003) ("When an appellant asserts that an adjudication order of the trial court is unsupported by the evidence, this Court examines the evidence to determine whether there exists clear, cogent and convincing evidence to support the findings.")

         As respondent points out, there was a total lack of evidence regarding him at the adjudication hearing other than the evidence to establish paternity. Here, there is nothing for this Court to analyze as the record and order are devoid of evidence and findings of fact regarding respondent beyond establishing paternity. There was no evidence about respondent's ability to parent, his home life, his ability to provide for Sam, or any other evidence a trial court must consider before finding a parent unfit or determining custody. While CCDHS urges this Court to ignore respondent's rights as a father and instead consider Sam's best interests, even a determination of his best interests would require evidence about respondent.

A natural parent may lose his constitutionally protected right to the control of his children in one of two ways: (1) by a finding of unfitness of the natural parent, or (2) where the natural parent's conduct is inconsistent with his or her constitutionally protected status. While this analysis is often applied in civil custody cases under Chapter 50 of the North Carolina General Statutes, it also applies to custody awards arising out of juvenile petitions filed under Chapter 7B.

In re D.M., 211 N.C.App. 382, 385, 712 S.E.2d 355, 357 (2011) (citations, quotation marks, and brackets omitted). Our courts cannot presume a parent to be unfit or to have acted inconsistently with his constitutional rights as a parent without clear, cogent, and convincing evidence to demonstrate why the parent cannot care for his child. See id.; see also McCabe, 157 N.C.App. at 679, ...


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